The right to diplomatic and consular protection constitutes an essential entitlement of citizenship of the European Union. This right marks the extension of the institution of EU citizenship to outside the borders of Member States. In that sense, Article 46 of the Charter on Fundamental Rights of the European Union provides: “Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.”
However, already before the entry into force of the Lisbon Treaty, the ‘right’ to diplomatic and consular protection was – constituting a part of Union citizenship – included in the first pillar (ex Art. 20 TEC), which means that this right should be directly applicable to individuals. Although no case was brought to the ECJ , the Court has already confirmed in a number of important cases that the provisions on Union citizenship (esp. the former Art. 18 TEC) are directly applicable and do confer important rights to individuals.
On 28 November 2006, the Commission adopted a Green Paper on diplomatic and consular protection of Union citizens in third countries (COM(2006)712). In this Green Paper the Commission set out ideas to be considered for strengthening the right of Union citizens to Community diplomatic and consular protection, as enshrined in ex Article 20 of the EC Treaty and taken up in the same terms in Article 46 of the Charter of Fundamental Rights. An ambitious catalogue of measures was suggested by the Green Paper, but most of the measures proposed have not been implemented yet – inter alia due to a very cumbersome implementation process in this field, probably not only caused by technical obstacles due to complicated national legislative procedures but also y lacking “enthusiasm.
Since the Charter on Fundamental Rights does also not foresee a right of individual application similar to the mechanism granted by the ECHR (European Convention on Human Rights), the Treaty of Lisbon and the inclusion of this right into the EU Charter on Fundamental Rights has not brought a change and does – although it looks of course nice on the paper – in practice not entail a substantive extension of the individuals’ right to consular protection.
Article 23 TFEU provides that the Council may adopt directives in order to establish the coordination and cooperation measures to facilitate such protection. Decision will be taken by qualified majority voting. However, according to the letter of this provision, the extension of diplomatic and consular protection at the Community level, takes effect only on the basis of rules drawn up between Member States. Therefore, the new provision as amended by the Treaty of Lisbon, means no significant change.
Anyway, improvement could be achieved by the European External Action Service, which has to be established as foreseen by the Treaty of Lisbon. According to the guidelines adopted by the European Council in October 2009, the EEAS will be a single service under the authority of the High Representative. The EEAS will have an organisational status reflecting and supporting the High Representative’s unique role and functions in the EU system. An effectively functioning European External Action Service (EEAS) would certainly strengthen the right to consular protection by creating synergies and increasing the efficiency of consular help to EU citizens, which would lead to better and easier practical implementation. To this end, however, the EEAS must become fully – and efficiently – operational, which might still take a certain time.